Utahns for Better Dental Health fought tooth and nail to get citizen approval to add fluoride to water in Davis County.

The group scored a victory in the 2000 general election, with 52 percent of the voters saying yes to fluoridation.

Then, two years later, UBDH won again after it successfully sued to stop a revote on the identical question – “Should fluoride be added to the public water supplies within Davis County?” – that an anti-fluoridation group had gotten on the ballot.

And on Dec. 21, UBDH was the winner a third time.

The Utah Supreme Court ruled 4-1 that Davis County must pay the legal fees UBDH incurred in fighting to stop the revote in the 2002 general election.

The decision sends the matter back to 2nd District Court for Judge Glen Dawson to determine the proper amount to be awarded. The amount must include the cost of appealing to the Supreme Court.

When UBDH filed its appeal last year, it was asking for $45,034. The fees for going to the state’s highest court would be in addition to that amount.

In Utah, attorney fees cannot be recovered unless authorized by statute or contract. But a judge can also award fees to a private attorney who vindicates an important public policy.

UBDH contends that the placement of the fluoridation question on the 2002 ballot was unlawful and that its lawyers should be paid for challenging Davis County officials.

Lawyers for Davis County responded litigants usually pay their own attorney fees and that County Clerk Steve Rawlings acted in good faith by preparing to place the fluoride question on the 2002 ballot. Attorneys fees, they argued, would be punitive.

After fluoridation was approved in November 2000, the Davis County chapter of Citizens for Safe Drinking Water, an anti-fluoridation group, started a petition drive for a revote.

In July 2002, Rawlings verified the signatures on the petition and delivered it to the Davis County Commission. The county commissioners took no action on the initiative, which allowed the measure that would stop fluoridation to go on the ballot.

Volunteer lawyers for UBDH sued, claiming the measure was actually a referendum that had been filed past the deadline to bring such actions. Dawson found in the group’s favor in September 2002 and granted an injunction stopping the revote.

However, the judge later declined a UBDH request for attorneys’ fees, leading to the Supreme Court appeal.

In their decision reversing Dawson, the majority of justices said blocking an unconstitutional initiative petition is a concrete benefit to a large number of voters, especially in light of the potential costs of campaigns for and against a measure.

Associate Chief Justice Michael Wilkins, however, the sole dissenter on the bench, said paying the expenses of a court challenge should be reserved “for only those few truly extraordinary occasions when a brave citizen takes on government and succeeds against corrupt or wrongful acts, and does so for altruistic reasons, at a personal financial sacrifice.”

The UBDH case was just a corporate challenge to a flawed initiative petition and fell outside that category, Wilkins wrote.

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